APPEAL from the Superior Court of San Bernardino County. Martin A. Hildreth, Judge. (Retired judge of the San Bernardino Mun. Ct., West Valley Div., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) (Super.Ct.No. CIVRS1000767)
The opinion of the court was delivered by: Miller J.
CERTIFIED FOR PUBLICATION
Plaintiff Dean Martin filed a complaint alleging six causes of
action deriving from purported racial and age discrimination and
retaliation by defendants Inland Empire Utilities Agency (agency) and
its CEO (chief executive officer),*fn1 Richard Atwater
(collectively, "defendants"), for plaintiff's refusal to take punitive
action against another employee who had made similar allegations.
Plaintiff's fifth cause of action for defamation alleged defendants
had "fabricated false allegations and uttered comm[unic]ations for the
specific purpose of injuring Plaintiff in his career and occupation
and designed to humiliate and embarrass Plaintiff . . . before the
Board and before his own staff." Some of the alleged defamatory
statements were purported to have occurred during a meeting of the
agency's board on October 7, 2009. Defendants demurred and also filed
a special motion to strike the complaint (anti-SLAPP motion)*fn2
pursuant to Code of Civil Procedure, section 425.16.*fn3
Plaintiff opposed both the anti-SLAPP motion and the
demurrer. Defendants filed replies with evidentiary objections to
plaintiff's declaration in support of his opposition to the anti-SLAPP
The court overruled defendants' demurrer as to the first and third causes of action, sustained it without leave to amend as to the second cause of action, and sustained the demurrer with leave to amend as to plaintiff's remaining causes of action including defamation. The court then denied the anti-SLAPP motion without ruling on any of defendants' evidentiary objections. Defense counsel brought the lack of any rulings on the evidentiary objections to the court's attention. Defense counsel also argued that the court's determination that plaintiff's failure to adequately plead the defamation cause of action compelled an order granting the anti-SLAPP motion at least as to that particular cause of action. The court agreed and issued an order granting the anti-SLAPP motion with leave to amend.*fn4 The court issued a separate order a week later, ruling on defendants' evidentiary objections.
Defendants appeal contending the court erred in (1) granting the anti-SLAPP motion as to only the fifth cause of action; (2) granting the anti-SLAPP motion with leave to amend; (3) neglecting to rule on their evidentiary objections prior to ruling on the anti-SLAPP motion; (4) overruling 18 of defendants' 33 evidentiary objections; and (5) failing to award them attorney fees as the prevailing party. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On January 27, 2010, plaintiff filed a complaint against defendants alleging causes of action for retaliation in violation of California's Fair Employment and Housing Act (FEHA) (first cause of action), retaliation in violation of public policy (second cause of action), racial discrimination in violation of FEHA (third cause of action), racial harassment in violation of FEHA (fourth cause of action), defamation (fifth cause of action), and wrongful constructive termination in violation of public policy (sixth cause of action). Plaintiff, a self-described individual of "African-American Heritage," alleged that approximately September 8, 2004, he was hired by the agency, the municipal water district for the City of Chino, as its executive manager of finance and administration reporting directly to Atwater. Plaintiff alleged that his predecessor, a Caucasian, held the title of Chief Financial Officer (CFO), a more prestigious title, reporting directly to the agency's board despite the fact that their duties and responsibilities were substantially similar.
Plaintiff alleged he was repeatedly assured he would be treated fairly. He was "praised for his work," and received "satisfactory annual performance appraisals, salary increases, and bonuses every year. Plaintiff worked hard and devoted long hours to his duties."
In early 2008, plaintiff discovered that a female African-American employee of the agency, Torres Levia, had filed a racial discrimination complaint against Atwater's Caucasian executive assistant, Julie Saba. Levia worked for the agency's human resources department headed by Amy Thenor. Plaintiff was Thenor's immediate superior. Plaintiff alleged that the agency's history with minorities was "deplorable." Atwater became "furious" that Saba had been so accused. Atwater began to complain to plaintiff about Levia's job performance, stating that she "'had issues that needed to be dealt with' and clearly suggest[ed] that he wanted punitive steps to be taken against Levia." Plaintiff had been informed by Thenor that Levia's job performance was satisfactory. Plaintiff knew that taking punitive steps against Levia would violate the law, and the agency's policy against retaliation against an employee who had lodged a discrimination complaint. Plaintiff refused to take any retaliatory action and advised Atwater against doing so.
Nonetheless, Atwater then demanded that Thenor take retaliatory measures against Levia. Thenor refused; she advised Atwater that to do so would violate the law and the agency's policies. Thenor later came to plaintiff complaining that Atwater had been harassing and threatening her to take punitive action against Levia. Thenor conveyed her intention to resign due to the harassment. Plaintiff advised Thenor that he would speak to Atwater. He did so. Atwater informed plaintiff that he would say nothing more on the issue to Thenor. Nevertheless, the next day Thenor came to plaintiff crying; she informed him that Atwater called her at home the previous evening and berated her for not taking measures against Levia. Thenor resigned thereafter.
Plaintiff alleged that from that point, his relationship with Atwater deteriorated. Atwater began to retaliate against plaintiff "by eroding Plaintiff's responsibilities, undercutting his authority with his own staff, undermining his credibility with the Board and taking actions designed to embarrass and humiliate Plaintiff in an effort to force Plaintiff to resign or to create a pretextual justification to terminate Plaintiff's employment." Specifically, plaintiff alleged that Atwater appointed Thenor's successor without consulting with him, restructured his division while he was away on leave, announced the restructuring by written memorandum distributed manually instead of the usual method of e-mailing such changes, and promoted another one of plaintiff's subordinates without consultation with plaintiff.
Nevertheless, on February 4, 2009, the board awarded plaintiff the title of CFO and directed that he, from thence, report directly to the board. Plaintiff alleged Atwater later threatened to resign unless the board reversed its decision. Atwater subsequently gave plaintiff a more critical annual review than he had ever before received. When plaintiff complained about the review, Atwater told him it was time for him "'"to make some decisions."'" Plaintiff interpreted this as Atwater's way of inviting him to resign. On October 7, 2009, the board "yielded" to Atwater's demand and directed that plaintiff begin reporting directly to Atwater again. Approximately October 12, 2009, plaintiff filed a written complaint of discrimination, retaliation and harassment against defendants with the California Department of Fair Employment and Housing, which eventually gave him notice entitling him to proceed with his current FEHA action.
On April 16, 2010, defendants filed their anti-SLAPP motion. Defendants asserted that all plaintiff's causes of action were barred as privileged communications made in the proper discharge of their official duties pursuant to Civil Code section 47. Defendants further averred they enjoyed sovereign immunity pursuant to Government Code sections 818.4, 820.2, 820.9, and 822.2. Defendants repeatedly maintained that all plaintiff's causes of action were derived from statements made by Atwater and the agency at the board meeting on October 7, 2009: "Plaintiff['s] Complaint is essentially based upon alleged statements made by [Atwater], the CEO/General Manger of [the agency] and/or others during a Board meeting for the Agency on October 7, 2009"; "While Plaintiff's Complaint asserts various other unspecified harassment and retaliation by Atwater, the gravamen of his claim is the alleged 'false accusations' made to the Board which resulted in Plaintiff being 'forced into a direct reporting relationship' with Atwater"; "Based on Atwater's statements to the Board at that October 7, 2009, meeting, Plaintiff asserts [his] causes of action against the Agency . . ."; "Essentially, Plaintiff's Complaint seeks to punish Atwater and/or the Agency for the statements made at the October 7, 2009, Board meeting which led to the Board making the decision to 'demote' him by ordering him to report directly to Atwater. Regardless of whether Plaintiff captions his claims as wrongful termination, harassment, or retaliation, the gravamen of his Complaint is the alleged defamatory statements made by Atwater and/or the Agency at the October 7, 2009, Board meeting . . . ." Defendants noted that "Plaintiff's Complaint fails to specifically describe these alleged statements. However, this deficiency is irrelevant for purposes of determining whether SLAPP applies because the allegations are subject to SLAPP on their face." Defendants further argued that any statements made outside the board meeting would likewise be subject to the anti-SLAPP motion because they were made in connection with an issue under consideration by a governmental entity, i.e., plaintiff's performance as an employee.
Defendants simultaneously filed Atwater's declaration in support of their motion. Atwater declared that approximately October 7, 2009, the board met in both open and closed sessions. In its closed session, Atwater believed the board discussed plaintiff's performance as CFO. The board determined to have plaintiff report directly to Atwater again. Atwater declared that he did not take part in the decision and was not present when it was discussed. The board did not demote plaintiff; his title, salary, and benefits remained the same. Atwater never intentionally undermined plaintiff's authority, harassed him, or took any actions based on plaintiff's race or in retaliation for any complaints he or others made to the agency. Atwater's actions or statements were directed solely to legitimate business concerns about the operations of the agency. Plaintiff resigned on January 4, 2010; his resignation letter read: "It is not possible for me to continue to work here under the existing conditions that . . . allow for retaliation, harassment, and discrimination. . . . I have been forced to take this action as a direct result of . . . Atwater's past and continuing retaliation, harassment, and discrimination due to my refusal to break the law . . . ."
In plaintiff's opposition to defendants' anti-SLAPP motion, he noted, "Defendants are attempting to mislead this Court into thinking the heart [and] soul of the instant lawsuit is defamation. Though, a part of the instant lawsuit, the essence of this case is not that of defamation. The actual heart and soul of this case stems from retaliation . . . and FEHA claims." "Defendant's retaliation and discrimination [against] Plaintiff is the focus of this lawsuit--not his 'political rights.'" Plaintiff "brings the instant lawsuit for the discriminatory acts committed against him and the retaliation he suffered for not breaking the law and for defamatory remarks made by Defendants during a lengthy time period--not because of an October 7, 2009, meeting." Plaintiff simultaneously submitted his own declaration which, as the court below found, "essentially mirrors the allegations of his complaint." Defendants filed 33 objections to the contents of plaintiff's declaration.
On May 11, 2010, the court heard defendants' anti-SLAPP motion. The court noted, "[t]his is an action for retaliation and wrongful termination filed by plaintiff . . . against his former employer . . . and . . . Supervisor . . . ." The court observed "Agency and Atwater have attempted to characterize the entire complaint as being only for defamation based upon remarks Atwater made to the Agency's Board. Although the complaint does contain a cause of action for defamation, the gist of this action is clearly not only defamation. There are pleading deficiencies in the complaint, but each and every cause of action does not fall within a defamation claim."
After ruling on defendants' demurrer, the court stated, "As to the special motion to strike, it's denied . . . ." Defense counsel noted that he had not heard any ruling on defendants' evidentiary objections. Defense counsel further noted, "I was kind of confused, or maybe I didn't hear it right. When you were reading the order with respect to the special motion to strike, it sounded like you said he hadn't adequately pled the defamation claim. And based on that, I would assert that the special motion to strike should be granted given that he was given the opportunity to come forward with admissible evidence and failed to do so." The court responded, "Good catch." The court then granted the special motion to strike with leave to amend. Plaintiff's counsel questioned the procedural propriety of the court's ruling: "Procedurally how does that work, your Honor? I don't think--I mean, if you're asking for an independent opinion, I don't think that's ...